Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:12:19 PM
The course contents
would be General and Basic Principles of Administrative Law, General and Basic
Principles of Law of Administrative Tribunals and the Basic Principles of Law
of Civil Service, with reference to Federal statutes as applicable to
1. A handbook for The Punjab Civil Service Laws by corrected and modified by S. A. Abid and S. A. Haider.
Difference between Court and tribunal: Following are the differences between them:
1. Administrative control:
Court: Higher Judiciary controls courts.
Tribunal: Government directly supervises tribunals.
2. System of management:
Court: Common system of management is applicable in courts.
Tribunal: Management as government prescribes is applicable in tribunals.
3. Presiding Officer:
Court: Officer who presides to Court is designated as Judge.
Tribunal: Persons so associated with tribunals are termed Members.
4. Head of the institution:
Court: Where there are more judges than one in courts, one of them is designated as Chief Justice.
Tribunal: One member among others is termed as Chairman of the tribunal
Court: All matters either civil or criminal are subjects of courts unless they are barred expressly. Jurisdiction of courts remains wide. Restrictions on courts are very limited.
Tribunal: All the matters, which are excluded from the jurisdiction of courts, are made subject of tribunals. Jurisdiction of tribunals remains limited in nature. Tribunals remain confined upto the extent of delegation of power.
6. Hearing of cases:
Court: U/s 9 of Code of Civil Procedure, courts cannot hear the matters, which are delegated to tribunals.
Tribunal: Under Article 199 of the Constitution, tribunals cannot hear matters against which they are debarred to hear.
7. Applicability of procedural law:
Court: Following of procedural law is compulsory either Code of Civil Procedure or Code of Criminal Procedure or the Law of Evidence or otherwise.
Tribunal: Procedural law of the land is not applicable except restricted provisions of Qanun-e-Shahadat.
Court: Code of Civil Procedure provides bye-laws.
Tribunal: Administrative authority of tribunals formulates its own laws.
Court: Appointment of judges, removal, promotion, and salary packages are governed by itself courts.
Tribunal: Government makes rules as to their appointment, removal, promotion, and salary packages.
10. Original jurisdiction:
Court: Courts enjoys inherent powers. All courts are courts of original jurisdiction. They may try the cases in first instance.
Tribunal: They are forums of appeals. They do not possess the powers of original jurisdiction. Where there is dispute as to the jurisdiction of the tribunal, only Court is competent to decide whether particular matter comes under the jurisdiction of tribunal or Court.
11. Power to enforce judgement:
Court: Courts have effective power to enforce their decisions by way of contempt.
Tribunal: Enforcement of the decisions is dependent of government.
Court: Courts are competent to punish the person who is guilty.
Tribunal: Tribunal cannot punish the person so guilty of offence. Power to punish guilty person is ineffective.
13. Forums of appeal:
Court: There are many forums of appeal after the judgement of trial Court such as District Judge, High Court, or Supreme Court.
Tribunal: Only one appeal is allowed preferably in Supreme Court.
14. Parties to suits:
Court: Any person may be party in suits.
Tribunal: Government is compulsory as necessary party in the cases of tribunals.
15. Parties to suits:
Court: All matters can be tried in courts. Government may or may not party in the cases try-able in courts.
Tribunal: Cases try-able in tribunals are only against government.
Government always is changed in democratic setup. Government possesses executive powers. Profession bureaucracy runs the affairs of government. Where bureaucracy is not professionally qualified and experienced, administration of state becomes very difficult to run. Professional bureaucracy strengthens the government. Protection of civil bureaucracy was protected under Government of India Act, 1935. Where government employees had committed wrongs, doors of the High Court were open to them for the redressal of their grievances. Under the said Act for areas were covered;
1. Method of appointment of bureaucracy, i.e., Indian Public Service Commission was made fair.
2. Terms and conditions were constituted including removal and promotion. Ordinary law could not change it.
3. As far as judicial remedy was concerned, it was vested to High Court.
Such freedom to profession bureaucracy is not available in presidential form of government. They are put to the mercy of executives. When president resigns, all of employees of government resign.
Government of India Act, 1935, this Act had to fill the space of Constitution
of Pakistan until the new Constitution is formed.
Full change in civil service and remedy for them was observed under the Constitution of 1973. Constitution of 1973 was the full turning point for the professional bureaucracy. Bureaucracy was fully protected before the formation of this Constitution. But the role of bureaucracy was disliked. Protection to bureaucracy became unavailable under the Constitution of 1973. Alternative remedy was provided for the redressal of their grievances. Ordinary law of tribunals was enacted. Jurisdiction of general courts becomes to an end. Two new Articles were included in the Constitution of 1973, i.e., Article No. 199 and Article No. 212. Protection which was granted to professional bureaucracy under Government of India Act, 1935 and Constitutions of Pakistan 1956 and 1962, abolished at all. Not only the protection granted was removed but also the new provision of tribunals was included.
Under Article 212 of the Constitution, both governments, i.e., central and provincial may constitute tribunals for their civil servants. Tribunals are aimed to hear the matters related with the terms and conditions of the civil servants. They also serve as appellate authority for civil servants. Under Article 199 of the Constitution, High Court shall not hear the matters relating to the civil servants. Relief granted by High Court became barred. Now removal of government employee becomes very easy for government. Civil servants work till the pleasure of government.
How the tribunals are constituted? They
are constituted same as the other courts are constituted such as Supreme Court,
Following area of study is to be covered:
1. Civil Servants Act.
2. Civil Servants Rules.
3. Civil Servants Tribunals Act.
4. Civil Servants Tribunals Rules.
Civil Servant: Every person who is in the service of Federal or answerable to government is civil servant of the federation.
All the autonomous bodies of the federation are the subject of tribunals for the redressal of their grievances like Wapda, Post Office etc.
President is authorized under Article 212 to constitute tribunals for federal employees of the government.
This is the
same as with the
autonomous bodies of the province are the subjects of High Court for the
redressal or their grievances like
Governor is authorized under Article 212 to constitute tribunals for provincial employees of the government.
Terms and conditions of service, disciplinary actions, promotion, or wrong terminations are the subjects of the tribunals.
Execution of the orders of the tribunals is impotent thus less effective.
Constitution: Article 212 of the Constitution governs the law relating to tribunals. It deals with the terms and conditions of the service. Every tribunal consists on one Chairman alongwith two members. President constitutes the tribunals and appoints its members and chairman with the advice of Prime Minister.
It is constituted u/s 3 of the Punjab Tribunal Act by following the procedure under-mentioned:
1. Powers of governor:
2. Determination of jurisdiction:
3. Determination of class to deal with:
How constituted: Following criteria is adopted to constitute the tribunal:
1. Notification: s
2. Members: It contains on two members.
3. Chairman: One person is designated as the Chairman of the tribunal.
4. Qualification: All the members alongwith Chairman should be equally qualified as to either Judge of High Court or retired from High Court. Qualification of Judge of High Court is ten years’ practice in High Court. Qualification of the members may also be prescribed under the rules. Members should be less than of fifty-eight years of age. His status is considered more than secretary of the department. He should also bear sound mind.
5. Condition: He takes oath before the Chief Justice of the High Court where he is not retired Chief Justice of the High Court.
6. Remuneration: Remuneration is fixed as follows:
a) Chairman (retired): Where he is retired servant, he draws the salary last drawn.
b) Chairman (working): Where he is working, his salary is fixed equal to the grade 22.
c) Member (retired): Where member is retired person, he draws salary equal to the salary last drawn.
d) Member (working): Where member is working, he draws remuneration equal to the salary he was drawing.
7. Jurisdiction: Jurisdiction of the tribunals is as under:
a) Terms and conditions of services:
8. Constitution of benches: Benches are constituted as per following procedure:
a) Power of chairman:
b) Bench upon Chairman:
c) Only one member:
d) Only members:
e) One member and one chairman:
9. Dispute of bench: Tribunal decides the disputes of the benches where they occur.
10. Transfer of matters: Chairman has power to transfer the matters from one bench to another under his jurisdiction.
11. Powers of tribunals: Tribunals posses the following powers:
a) Original cases:
b) Appeals: They bears following powers where they act as appellate jurisdiction:
i) Set aside:
iii) Confirmation: They may uphold the decision made by the executive authority.
iv) Act as civil court:
v) Issuance of summons:
vi) Evidence on oath:
vii) Compel to give evidence:
viii) Compel to produce document:
ix) Compel to be present:
x) Constitution of commission:
xi) Natural justice:
Vacation of the seat: Resign, death, or terminations are the common modes of the vacation of seats of members of tribunals. In other words members of the tribunals work till the pleasure of the government. Government does mean in centre Prime Minister and in province Chief Minister. They cannot possess any service in Government of Pakistan.
Decision powers: All the members including Chairman gives their unanimous decision otherwise decision of majority is sustained. Where decision is divided equally then the decision of Chairman prevails.
Appeal: Government acts as defendant in tribunals. Appeal is consideration of law points omitted at original level. First appeal is right of each aggrieved party but second appeal is discretion of appellate Court.
Difference of ministry and department: The term Ministry is used for Federal Government whereas the term department is used in Provinces.
Minister under Federal Government represents Ministry while Minister under Provincial Government represents Department.
When we deal
with education matters in federation, it is called ministry where as it is
termed as department in province.
Classification of departments: There
are only five total classifications of departments in
1. Federal Ministries. It is subject of tribunal.
2. Federal Autonomous Bodies. Employees go to tribunals.
3. Provincial Departments. Relief is sought from tribunals.
4. Provincial Autonomous Bodies. Only writ lies for the redressal of grievances.
5. Local Governments. Relief is granted under writ.
Dismissal of suit: Suit is dismissed on merit after complete hearing on points of facts in issue. Principle of res judicata applies where suits are dismissed. Where plaintiff fails to appear in hearing, suit is dismissed. Where defendants commits failure in appearance, suit is decided ex parte.
Rejection of suit: Where suit involves some technical faults, suit is rejected. It can be filed subsequently after making good of deficiency. For example, where suit is improperly stamped and not made good after notice of the Court, case is rejected. Suit can be filed again in the same Court after affixation of proper Court fee within limitation period prescribed for that suit.
Return of plaint: Where Court does not entertain suit being wrong forum to proceed, plaint is returned to put on proper forum. Here the principle of res judicata does not apply. For instance, where service matter is brought in High Court, it is returned to present in Service Tribunal constituted for this particular purpose. Court does not proceed on the suit being having no jurisdiction.
Powers of tribunal: Tribunal possesses certain powers to discharge its obligations such as:
1. Uphold or confirmation of judgement.
2. Set aside the judgement.
3. Vary the judgement.
4. Modification in judgement.
Tribunal acts as civil Court when decides any appeal and exercises all powers of Code of Civil Procedure in following matters:
1. Compel to attend the Court any party.
2. Examination on oath.
3. Compel to production documents.
4. Issuance of commission.
Court fee: Court fee is not applicable on the petitions filed in tribunals, as it is not applicable before Ombudsman.
Limitation: Appeal against the decision of the tribunal lies to High Court within thirty days of the order of the tribunal while ninety days time period is provided for the exhaustion of alternative remedy before higher authorities of the ministry or department. Where higher authority decides the matter within ninety days in favour of applicant, no appeal shall lie otherwise thirty days shall be given for appeal in tribunal. Period of thirty days is available at both original and appellate level.
Ss. 5 and 12 of the Limitation Act are applicable while the proceedings in tribunals.
Counsel: Engagement of counsel before Ombudsman is immaterial while it is obligatory during the proceedings in tribunals.
Evolution of tribunal: Following are reasons of the evaluation of the tribunals:
1. Government institution: Government institutions have to perform certain administrative functions, which cannot perform due to certain reasons, that’s why concept of tribunal is emerged.
3. Characteristics: Following are the characteristics of the tribunals:
a) Under law:
b) Semi judicial: Their functions are of quasi nature.
c) Neither administrative nor Court:
d) Natural justice:
e) Independent in function:
f) Powers as per law:
h) Under Court:
i) Discretionary powers:
j) Judicial powers by government:
4. Grounds of evolution:
a) Increasing administrative powers:
b) Long pendency of disputes:
c) Easy and inexpensive justice:
e) Conclusion of summary matters:
f) Practical aspect:
g) Deep understanding of matters:
h) Protection against administrative powers:
i) Technical expertise:
j) Urgent and emergent determination:
Service of summons to witnesses: Following criteria is adopted to summon witnesses:
1. Powers as civil Court/Service Tribunal Rules, 1975: s
2. How summons u/ss 15 to 18: s
a) Summons contains appeal: s
b) Contents of appeal: s
i) Names: s
ii) Addressees: s
iii) Summary of possible evidence: s
iv) Brief description of document: s
c) Call via tribunal: s
i) Where necessary: s
ii) Orders to deposit cost: s
iii) Travelling cost: s
d) Where no cost is deposited: Appeal is rejected.
e) Call of witnesses at own motion: s
f) Determination of cost: s
i) Where government employees are called: TA/DA rules are applicable.
ii) Where private person is: Appellant pays the cost.
iii) Tribunal decides: Where private person is involved, tribunal decides as to how much cost is to be paid.
g) Summoning of high ranking: s
h) Summoning of government employees: s
i) Procedure on evidence: s
i) Before tribunal: s
ii) Word to word recording: s
iii) Signature of member: s
j) Attitude of witnesses: They can be recorded.
k) Determination of appeal:
i) Where no presence: Appeal is dismissed.
ii) Ex-parte: Where respondent fails to defend.
iii) On merit: